Will Protections for Gay Workers Lead to a Wave of Lawsuits?

Having secured critical support in the Senate on Monday, backers of a bill that would ban discrimination on the basis of sexual orientation and gender identity appear to have enough votes to pass the legislation in the U.S. Senate. If it then receives a ‘yea’ vote in the House of Representatives, the Employment Non-Discrimination Act, called ENDA, would encode workplace protections for lesbian, gay, bisexual and transgender Americans into federal law.

The bill faces steep odds in the House, however. Speaker John Boehner (R., Ohio) has objected to the measure, stating that it would incite a wave of lawsuits from individuals who feel they’ve experienced discrimination at work because of their sexual orientation or gender identity.

The speaker’s concern may be unfounded, according to a report released in July by the U.S. Government Accountability Office. The agency examined the number of complaints filed in the 21 states – 22, including the District of Columbia – with laws on the books forbidding discrimination against lesbian, gay and bisexual workers. Eighteen of those states also ban workplace discrimination on the basis of gender identity, which would apply to transgender people.

The data “show relatively few employment discrimination complaints based on sexual orientation and gender identity,” the GAO found. The agency looked at data provided by the states for the years 2007 to 2012.

In Wisconsin, for example, only 69 of the 3,383 employment discrimination grievances filed in 2012 – or 2% — included sexual orientation as a basis. In Oregon, it was 30 out of 1,676 complaints (1.8%); in New York, 243 out of 5,032 (4.8%); and in California, 1,104 out of 19,839 (5.6%).

The low numbers partly reflect the fact that only a small percentage of the U.S. population identifies as gay, lesbian or bisexual – 4%, according to the Williams Institute, a research organization based at the University of California School of Law. The Institute estimates that 500,000 Americans are transgender.

The relatively scant complaints may also indicate that LGBT workers are faring well in the workplace, said Fred Sainz, a spokesperson at the Human Rights Campaign, an LGBT advocacy group.

“We’ve definitely achieved a point where the American public perceives it as not being correct to discriminate against LGBT people,” he said. Indeed, many employers and supervisors may already be watching what they say and do regarding employees’ sexuality; political polling firm TargetPoint found in September that 80% of Americans already think it’s illegal under federal law to discriminate against gays and transgender workers.

The numbers may also tell a darker story, Sainz suggested. Some LGBT employees “simply want to move on with their lives and not call attention to their sexual orientation by tying their firing with discriminatory behavior,” he said.

For a lot of corporate workers, the fate of the legislation probably seems beside the point. Approximately 80% of Fortune 500 companies already have internal policies similar to ENDA, says the HRC.

About At Work

Written and edited by The Wall Street Journal’s Management & Careers group, At Work covers life on the job, from getting ahead to managing staff to finding passion and purpose in the office. Tips, questions? email us.